State opposed permit deal accepted by company

CHARLESTON, W.Va. -- Gov. Earl Ray Tomblin's environmental regulators threatened to sue the Obama administration over tougher language in a mountaintop removal permit, even though the company seeking the permit accepted the U.S. Environmental Protection Agency's new water quality limits.

The language was contained in one of two key permits that CONSOL Energy still needed to begin operations at the Buffalo Mountain Surface Mine being proposed as part of the King Coal Highway project in Mingo County.

EPA had said it would not allow the state to issue CONSOL's Clean Water Act pollution discharge permit without a provision to force action to control mine runoff if levels of pollution-related electrical conductivity, which scientists say is a crucial measure of water quality.

Department of Environmental Protection officials opposed the inclusion of such language and in a letter last week threatened to take EPA to court over it.

DEP officials eventually agreed to allow the language. EPA dropped its objections to the permit, and on Monday the state issued the permit worked out by CONSOL officials and EPA representatives.

"It's not a permit we normally would have approved," said DEP Secretary Randy Huffman. "We feel it has more in it than is necessary."

The 2,300-acre permit -- among the largest single strip-mining projects ever proposed in Appalachia -- remains hung up as federal officials complete a more detailed environmental study and review a second Clean Water Act permit to allow mining waste to be dumped into streams.

On Tuesday, CONSOL cited "a sequence of permit delays" when it announced plans to lay off 145 workers from an existing operation. Mining is nearly complete at that mine, the Miller Creek operation, and CONSOL had planned to move its workers to the Buffalo Mountain project.

The company's announcement prompted strong reactions from West Virginia political leaders, with Gov. Earl Ray Tomblin and Democratic members of the state's congressional delegation saying the were "incensed" that EPA was delaying the mining permit and the highway project.

Sen. Joe Manchin, D-W.Va., said that when he was governor he "made sure that the state supported the project's permitting and funding requests."

"Now, as senator, I am incensed and infuriated that the EPA would intentionally delay the needed permit for a public-private project that would bring so many good jobs and valuable infrastructure to communities that so desperately need them," Manchin said in a statement.

CONSOL said the company "remains optimistic" that it "will ultimately be successful in securing the approvals necessary to enable jobs and economic development for the mine and highway project in Mingo County and the state."

EPA officials have long expressed major concerns about the Buffalo Mountain proposal, submitting a letter objecting to a U.S. Army Corps of Engineers "dredge-and-fill" permit for the operation on the day President Obama was inaugurated.

CONSOL wants to mine 16 million tons of coal at the site over a 14-year period. Part of its post-mining land use plan involves construction of a portion of the King Coal Highway on mined-out areas. Local officials also say the mining would provide large areas of flattened land that could be used for economic development.

But EPA is concerned because the mining, proposed for between Belo and Delbarton, would bury nearly 10 miles of streams beneath waste rock and dirt, under more than a dozen valley fills.

"The scale and magnitude of environmental and water quality impacts from the mine as currently proposed are as significant as any mining operation we have reviewed in the past 20 years," EPA regional water quality director Jon Capacasa wrote in a January letter to DEP.

EPA cited the growing body of scientific literature that documents "the adverse water quality, environmental, and public health effects of Appalachian surface coal mining."

The EPA's deal with CONSOL is similar to one federal officials made earlier this year with Hamden Coal Co. over its Canebrake Surface Mine, also in Mingo County. In June, EPA regional administrator Shawn Garvin cited the Canebrake permit as an example of how EPA has "worked successfully" with some mine operators to address permit concerns.

But in an Oct. 23 letter to EPA, Huffman said the Canebrake permit deal was negotiated with EPA "by a permit applicant that was highly motivated to obtain a permit and willing to agree to any demand" federal officials made.

Huffman said the DEP believes the permit provisions "exceed what is necessary" to meet West Virginia's water quality standards.

Also, Huffman argued, EPA in demanding the conductivity provisions was violating a federal court order that threw out EPA water quality guidance that advised EPA regional offices to seek to have such provisions included in water pollution permits for mining operations.